Citation Nr: 9825237
Decision Date: 08/21/98 Archive Date: 07/27/01
DOCKET NO. 93-28 436 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to an increased evaluation for residuals of a
shell fragment wound, right thigh with muscle herniation,
Group XIII with retained foreign body, currently evaluated at
30 percent disabling.
2. Entitlement to an increased evaluation for residuals of a
shell fragment wound, left hip and thigh with retained
foreign body and involvement of saphenous nerve, currently
evaluated at 10 percent disabling.
3. Entitlement to an increased (compensable) evaluation for
residuals of a shell fragment wound, both buttocks.
4. Entitlement to an increased (compensable) evaluation for
residuals of a shell fragment wound, right knee.
5. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
low back disability on a direct basis.
6. Entitlement to service connection for a low back
disability secondary to service-connected shell fragment
wound disabilities.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
L.A. Howell, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1943 to March
1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Atlanta,
Georgia, which denied an increased entitlement for residuals
of shell fragment wounds of the right thigh, left hip and
thigh, buttocks, and right knee. The RO also denied
entitlement to service connection for a back disability on
both a direct and secondary basis.
On appeal, the Board remanded the case to the RO for further
developments by decision dated in October 1995.
Specifically, the Board request VA examinations in order to
evaluate the nature and severity of the veteran's service-
connected shrapnel wounds. Further, although the veteran had
previously filed a claim for entitlement to service
connection for a back disability, it was unclear whether the
RO had considered new and material evidence with respect to
the veteran's current claim for a back disability on a direct
basis. Finally, the Board sought clarification of whether he
had been properly notified of the previous denial of his
claim for a back disability on a secondary basis. The
requested developments have been accomplished, the issues are
properly characterized on the title page, and the case is now
ready for appellate review.
The issue of service connection for chronic obstructive
pulmonary disease was denied by rating action of September
1997. The appellant was notified the next month. The claims
file does not review that that issue has been otherwise
developed for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that his service-connected
residuals of shell fragment wound disabilities are worse than
currently evaluated. He further asserts that he has
submitted new and material evidence to reopen his claim, and
that this evidence is sufficient to establish service
connection for a back disability. Finally, he argues that he
is entitled to service connection for a low back disability
because his service-connected disabilities have aggravated
his back disorder. His representative has joined in these
contentions.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claims for increased ratings for
residuals of shell fragment wounds of the right thigh, left
hip and thigh, both buttocks, and right knee.
It is further the decision of the Board that the veteran has
not submitted new and material evidence to reopen the claim
of entitlement to service connection for a back disability on
a direct basis. Finally, it is the decision of the Board
that the veteran has not met the initial burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim for entitlement to
service connection for a back disability on a secondary basis
is well grounded, and the claim is accordingly denied.
FINDINGS OF FACT
1. The RO has developed all evidence necessary for an
equitable disposition of the veteran's claim.
2. The veteran's residuals of shell fragment wounds of the
right thigh, left hip and thigh, buttocks, and right knee are
currently manifested by subjective complaints of leg weakness
and inability to walk long distances.
3. Current objective findings show moderately severe muscle
disability of the right thigh, a severe paralysis of the
internal saphenous vein of the left hip and thigh, and well-
healed, nontender scars on both buttocks and right knee.
More than slight muscle injury to the muscles of the left hip
and thigh and both buttocks has not been shown.
4. There is no objective clinical evidence of scars that are
poorly nourished with repeated ulcerations, tender and
painful on objective demonstration, or limiting the function
of the veteran's right thigh, left hip and thigh, buttocks,
or right knee.
5. To the extent the veteran claims a back disorder on a
direct basis, the RO denied entitlement to service connection
for a back disorder by decision dated in May 1981. The
appellant was notified. The RO's May 1981 decision
represents the last final disallowance of entitlement to
service connection for a back disorder as a direct service
connection on any basis.
6. The evidence submitted subsequent to the RO's May 1981
decision, including the veteran's written statements and
testimony, outpatient treatment records, private medical
records, and hospitalization reports, in an attempt to reopen
the veteran's claim for service connection is, for the most
part, new but does not establish a direct connection between
the veteran's current back disorder and active duty service.
7. To the extent the veteran claims a back disorder on a
secondary basis, the veteran has not presented any competent
evidence of a relationship between his service-connected
shell fragment wound disabilities and his current back
disability.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 30 percent
for residuals of a shell fragment wound, right thigh with
muscle herniation, Group XIII with retained foreign body have
not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp.
1998); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.41,
4.55, 4.56, 4.71, 4.71a, 4.73, Plate II, Diagnostic Code (DC)
5313 (1997).
2. The criteria for an evaluation in excess of 10 percent
for residuals of a shell fragment wound, left hip and thigh
with retained foreign body and involvement of saphenous nerve
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 &
Supp. 1998); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40,
4.41, 4.55, 4.56, 4.71, 4.71a, 4.123, 4.124a, Plate II, DC
8527 (1997).
3. The criteria for a compensable evaluation for residuals
of a shell fragment wound, both buttocks have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1998); 38 C.F.R.
§§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.41, 4.55, 4.56, 4.71,
4.71a, 4.118, DC 5317, 7803, 7804, 7805 (1997).
4. The criteria for a compensable evaluation for residuals
of a shell fragment wound, right knee have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1998); 38 C.F.R.
§§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.41, 4.55, 4.56, 4.71,
4.71a, 4.118, DC 7803, 7804, 7805 (1997).
5. The evidence submitted subsequent to the RO May 1981
decision denying entitlement to service connection for a low
back disability on a direct basis is new but not material;
therefore, the veteran's claim has not been reopened.
38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 1998); 38 C.F.R.
§ 3.156 (1997).
6. The claim for entitlement to service connection for a low
back disability secondary to service-connected shell fragment
wound disabilities is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991 & Supp. 1998); 38 C.F.R. § 3.310 (1997);
Allen v. Brown, 7 Vet. App. 439 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board finds that the veteran's claims, with
the exception noted below, are "well grounded" within the
meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998);
that is, he has presented claims that are plausible.
Further, he has not alleged nor does the evidence show that
any records of probative value, which could be associated
with the claims folder and that have not already been sought,
are available. The Board accordingly finds that the duty to
assist the veteran, as mandated by § 5107(a), has been
satisfied.
I. Claims for Entitlement to Increased Rating for Shell
Fragment Wound Disabilities
A. In-Service History of Shell Fragment Wound Injuries
Service medical records reveal that the veteran sustained
penetrating shrapnel wounds of upper left thigh, lower right
thigh and knee, and both buttocks on November 19, 1944, as a
result of enemy action. He was awarded the Purple Heart.
Specifically, he had a severe, penetrating wound on the upper
and middle 1/3 lateral and posterior surface of the left
thigh. There was no involvement of the left hip joint and no
evidence of fracture although it appears that the left thigh
wound became infected. He also sustained a moderate,
perforating wound with entry in the distal 1/3 of the
anterior aspect and exit in the middle 1/3 of the posterior
aspect of the right thigh. In addition, he had moderate
penetrating wounds on the posterior surface of both buttocks.
Records indicate that the femoral artery and nerve were
severed on the left thigh and on November 26, 1944, he
underwent a ligation of the femoral artery and vein. Post
operative treatment included penicillin and irrigation. He
was treated with Penicillin and the wounds were debrided in
December 1944, but the foreign bodies were not removed. In a
hospital discharge note dated in February 1945, the treating
physician noted that the veteran was ambulating and the
wounds had healed. Progress to date was slow normal. His
gait was normal but strength was still less than normal. He
was returned to full duty with a three to four week
rehabilitation period noted. A March 1945 treatment note
indicates that the wounds were completely healed and that the
veteran had undergone 34 days of rehabilitation and he was
ready for full duty. In February 1946, shortly prior to
service separation, he underwent removal of metal fragments
from the left hip; however, it was not recommended that the
foreign bodies be removed from both buttocks because they
were not in a position to cause symptoms or other
difficulties. He was discharged in March 1946.
B. Procedural History
In March 1946, the veteran was service-connected for scars,
left hip and thighs, paresthesia of the left femoral nerve,
and herniation of the hamstring muscles on the right and a 30
percent evaluation was assigned. In April 1947, the service
connected disabilities were recharacterized as residuals of
shell fragment wound, right thigh with muscle herniation,
Muscle Group XIII, with retained foreign bodies with a 30
percent evaluation under DC 5313, residuals of shell fragment
wound, left hip and thigh with paresthesia of the antero-
medial aspect of the left leg in the distribution of the
saphenous nerve, with retained foreign bodies with a 10
percent evaluation under DC 8527, and residuals of shell
fragment wound, multiple, both buttocks and right knee, both
assigned noncompensable evaluations. Despite several
attempts by the veteran over the years to obtain increased
ratings, the disabilities as described and the assigned
rating are currently in effect today.
Most recently, in June 1991, the veteran requested an
increased rating for his service-connected disabilities. He
maintained that his entire right leg went to sleep after
standing on it for short periods of time and caused
considerable pain into his hip and back. He also reported
considerable problems with his right foot, and left hip and
thigh. He further asserted that these conditions caused
muscle spasms and pain in his back and requested that his
back disability be service connected as secondary to his
right and left leg and thigh disabilities.
At a personal hearing in March 1993, he testified that he was
unable to stand for more than 15-20 minutes because of muscle
spasms from his thighs to his lower back. He related that
sometimes he could walk a fair distance and sometimes he
could not walk very far. He also maintained that he had
peripheral nerve involvement of both hips and not just the
right side. He believed that he had problems with spasms in
his legs and lower back because of the shell fragment wounds
and that eventually lead to surgery on his back.
C. Relevant Law and Regulations
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Generally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability. 38 C.F.R. § 4.1 (1997). Separate diagnostic
codes identify the various disabilities. 38 U.S.C.A. § 1155
(West 1991 & Supp. 1998); 38 C.F.R. Part 4 (1997). Where
there is a question as to which of two evaluations shall be
applied, the higher evaluations will be assigned if the
disability more closely approximates the criteria required
for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (1997). When, after careful
consideration of all procurable and assembled data, a
reasonable doubt arises regarding the degree of disability,
such doubt will be resolved in favor of the veteran. 38
C.F.R. § 4.3 (1997).
Guidance in rating muscle injuries is set out at 38 C.F.R. §
4.56, which discusses factors to be considered in the
evaluation of disabilities residual to healed wounds
involving muscle groups due to gunshot wounds or other
trauma. Slight muscle disability is described as a simple
wound of muscle without debridement, infection of effects of
laceration. History will be reported as slight severity or
relatively brief treatment and return to duty. Healing with
good functional results. There will be no consistent
complaint of cardinal symptoms of muscle injury or painful
residuals. Objective findings will include minimum scar,
slight, if any, evidence of fascial defect or of atrophy or
of impaired tonus. No significant impairment of function and
no retained metallic fragments.
Moderate disability of muscles is described as a through and
through or deep penetrating wounds of relatively short track
by single bullet or small shell or shrapnel fragment.
Absence of explosive effect of high velocity missile and of
residuals of debridement or of prolonged infection. History
will include evidence of hospitalization for treatment of
wound with consistent complaints on record of one or more of
the cardinal symptoms of muscle wounds particularly fatigue
and fatigue-like pain after moderate use, affecting the
particular functions controlled by the injured muscle.
Objective findings include entrance and exit scars linear or
relatively small and so situated as to indicate relatively
short track of missile through muscle tissue, signs of
moderate loss of deep fascia or muscle substance or
impairment of muscle tonus, of definite weakness or fatigue
in comparative tests.
Moderately severe muscle disability is described at 38 C.F.R.
§ 4.56(c) as being from through and through or deep
penetrating wound by high velocity missile of small size or
large missile of low velocity, with debridement or with
prolonged infection or with sloughing of soft parts,
intermuscular cicatrization. History should include
prolonged hospitalization in service for treatment of a wound
of severe grade, and cardinal symptoms muscle wounds.
Objective findings should include relatively large entrance
and exit scars so situated as to indicate the track of the
missile through important muscle groups, with moderate loss
of deep fascia or moderate loss of normal firm resistance of
muscle as compared with the sound side. Tests of strength
and endurance of muscle groups involved give positive
evidence of marked or moderately severe loss.
Severe muscle disability is described at 38 C.F.R. § 4.56(d)
as being from through and through or deep penetrating wounds
due to a high-velocity missile or to large or multiple low-
velocity missiles, or an explosive effect of high velocity
missiles, or shattering bone fracture with extensive
debridement or prolonged infection and sloughing of soft
parts, intermuscular binding and cicatrization. History
should be similar to that indicated in § 4.56(c), but in
aggravated form. Objective findings should include extensive
ragged, depressed and adherent scars so situated as to
indicate wide damage to muscle groups in the track of the
missile. X-rays may show minute multiple scattered foreign
bodies indicating spread of intermuscular trauma and
explosive effect of missile. Palpation shows moderate or
extensive loss of deep fascia or muscle substance, with soft
or flabby muscles in the wound area. Muscles do not swell
and harden normally in contraction. Tests of strength and
endurance of muscle groups involved give positive evidence of
severe impairment of function. In electric tests, reaction
of degeneration is not present but a diminished excitability
to faradic current may be present.
D. Recent VA Examination Report and Other Medical
Evidence
In the most recent VA examination report dated in July 1996,
which is the most probative evidence to consider in
determining the appropriate disability rating to be assigned
under the holding in Francisco v. Brown, 7 Vet. App. 55
(1994), the veteran complained that his right leg was giving
him more problems than his left knee. He related that his
legs were weak and that he could not walk long ways because
his legs gave out. He also complained of low back pain,
which the examiner noted was not related to the shrapnel
wounds.
Physical examination revealed that he was able to walk on
toes and heels with some difficulty. He was able to squat to
full range and could resume the upright position without
assistance. Knee deep tendon reflexes were 1+ with
reinforcement. There was an inability to dorsiflex the right
great toe. There was hypesthesia to pinprick stimuli at that
level. The examiner concluded that this was suggestive of
disc disease at the level of L5-S1, rather than effects from
the shell fragment wounds. There was no fasciculation of the
musculature of the right lower extremity. The circumference
of the thighs and calves were essentially the same
bilaterally indicating that there is no atrophy of the thigh
or calf musculature. Range of motion of the knees were
extension to 0 degrees, and extension to 140 degrees,
bilaterally. Patrick's test was negative bilaterally
indicating that there was no hip pathology.
On inspection, the examiner described multiple scars
including several well-healed, slightly disfiguring scars on
the left hip and thigh area, and a vertically-oriented scar
on the popliteal area. Auscultation of the scars revealed no
underlying bruits. Examination of the right side revealed
scars at the popliteal space and lateral aspect of the right
knee. Also scarring was noted on the right buttocks. No
underlying bruits were noted of these scars. The examiner
noted that the veteran had bilateral femoral systolic bruits
indicating that he had some arterial insufficiency involving
the lower limbs which was unrelated to the shrapnel wounds.
In a September 1996 VA examination addendum report, the
veteran related that the scars on his lower extremities were
a little tender at times if they were bumped or touched but
otherwise they were doing alright. Physical examination
revealed that hip abduction was 50 degrees bilaterally and
the veteran could squat to full range of motion and resume
the upright position without assistance and without
discomfort. He could still stand on toes and heels. Hip
flexion was 120 degrees on the right and 125 degrees on the
left. A difference in ankle range of motion was related to a
back disorder, namely the spinal stenosis. Knee extension
was 0 degrees bilaterally and flexion was to 140 degrees
bilaterally. Patrick's test was negative bilaterally
indicating that there was no hip pathology. The examiner
reported that some scars were slightly disfiguring and by
observation, nontender to touch. Some were slightly
retracted and depressed, but there was no observable loss of
underlying muscle group substance. It is noted that there is
a long postoperative scar running much of the length of the
left thigh. This reportedly is the location of the nerve
repair surgery.
Other medical evidence submitted from private physicians show
that the veteran had received treatment for a variety of
other medical disorders, including, among other things,
carotid endarterectomy, shortness of breath, back pain,
cerebrovascular accident, and cataract extraction. However,
there are no specific physical findings in connection with
the veteran's shell fragment wound residuals.
With each of the service-connected disabilities listed below,
the Board will consider separate compensable ratings for
muscle involvement, musculoskeletal disability, peripheral
nerve disorder, joint involvement, and residual scarring.
D. Entitlement to an Increased Evaluation for Shell
Fragment Wound, Right Thigh with Muscle Herniation, Group
XIII with Retained Foreign Body (at 30 Percent)
The RO has rated the veteran's right thigh shell fragment
wound under DC 5313 for Muscle Group XIII. Under DC 5313,
severe muscle impairment warrants a 40 percent evaluation.
Moderately severe impairment warrants a 30 percent
evaluation. In this case, a review of the most recent
clinical evidence of record does not reflect that a higher
than 30 percent rating under this code for shell fragment
wounds, right thigh is warranted.
The most recent VA examination report indicated that there
was no fasciculation of the musculature of the right lower
extremity. Further, the circumference of the thighs and
calves were essentially the same, which the examiner
indicated reflected no significant degree of atrophy.
Moreover, the examiner noted that there was no loss of muscle
substance around the sites of the scarring. Thus, there is
no evidence of extensive loss of deep fascia or muscle
substance. Finally, the veteran was able to squat to full
range and there was no evidence of severe impairment of
function of the right thigh. Thus, the Board can find no
basis on which to grant a higher than 30 percent evaluation
under DC 5313.
The Board has also considered limitation of motion of the
right hip, thigh, and knee. The VA examiner reflected that
Patrick's test was negative, which indicated that no hip
pathology existed. Further, range of motion of the right
knee was reported as flexion to 140 degrees and extension to
0 degrees, which, according to Plate II at 38 C.F.R. § 4.71,
is full range of motion for the knee. Accordingly, the Board
can find no basis on which to grant a separate compensable
evaluation for a musculoskeletal disability.
In evaluating the veteran's peripheral nerve involvement, the
Board notes that there was an inability to dorsiflex the
right great toe and hypesthesia to pinprick stimuli at that
level. The examiner concluded that this was suggestive of
disc disease at the level of L5-S1, rather than the effects
from the shell fragment wounds. Therefore, the evidence does
not reflect that the veteran has demonstrated findings
compatible with a compensable evaluation for peripheral nerve
involvement.
In evaluating scarring, the Board notes that the veteran
related that the scars were sometimes tender if bumped or
touch. The examiner noted multiple well-healed, slightly
disfiguring scars, including scars at the lower pole of the
right thigh terminating at the popliteal space and lateral
aspect of the right knee. Also scarring was noted on the
right buttocks. No underlying bruits were noted of these
scars and the examiner reported that the scars were nontender
to touch. Because there is no evidence of poorly nourished
scars with repeated ulcerations, or tender and painful on
objective demonstration, or disfiguring on the head face or
neck, there is no basis on which to grant a compensable
evaluation.
E. Entitlement to an Increased Evaluation for Shell
Fragment Wound, Left Hip and Thigh with Retained Foreign Body
and Involvement of Saphenous Nerve
The RO has rated the veteran's shell fragment wound, left hip
and thigh disability under DC 8527. Under DC 8527, a
noncompensable evaluation is assigned for mild to moderate
paralysis of the internal saphenous nerve. Severe to
complete paralysis warrants a 10 percent evaluation, the
highest available under this code.
In this case, the most recent VA examination revealed no
evidence of hip pathology and no indication of osteoarthritis
involving the hips. The Fabere test was negative
bilaterally. The circumference of the thighs and calves were
the same, indicating no atrophy of the thigh or calf
musculature. The examiner noted that the weakness the
veteran reported related to the lower extremities was in
keeping with the back disorder which was not related to
shrapnel wounds. Moreover, the Board must point out that a
higher than 10 percent rating would not be available under DC
8527 regardless of the severity of the peripheral nerve
disability.
In evaluating the muscle injury, the Board notes that the
most recent VA examination showed no atrophy of the thigh and
calf musculature, no hip pathology, and no loss of underlying
muscle group substance at the site of the scarring. He had
full range of motion of hip abduction and flexion and could
squat to full range of motion. The examiner reflected that
the veteran's symptoms of weakness and discomfort were caused
by an unrelated back disability. Thus, there is no
significant impairment of function of the left hip and thigh
and no basis for a separate compensable evaluation under any
of the appropriate muscle groups.
The Board has also considered limitation of motion of the
left hip and thigh. However, the VA examiner reflected that
Patrick's test was negative, which indicated that no hip
pathology existed. Range of motion was noted as hip
abduction to 50 degrees, and hip flexion to 125 degrees.
Referencing Plate II in 38 C.F.R. § 4.71, this is considered
full range of motion. Accordingly, the Board can find no
basis on which to grant a separate compensable evaluation for
a musculoskeletal disability.
As discussed above, in evaluating scarring, the Board notes
that the veteran related that the scars were sometimes tender
if bumped or touch. The examiner noted multiple slightly
disfiguring, retracted, and depressed scars which were
nontender to touch. Because there is no evidence of poorly
nourished scars with repeated ulcerations, or tender and
painful on objective demonstration, or disfiguring scars on
the head face or neck, there is no basis on which to grant a
compensable evaluation for residual scarring.
F. Entitlement to an Increased (Compensable) Evaluation
for Shell Fragment Wound, Both Buttocks
The RO has rated the veteran's shell fragment wounds of the
buttocks under DC 7805. Scars are rated under DCs 7803,
7804, or 7805. In order to warrant a 10 percent evaluation
for a superficial scar, it must be tender and painful on
objective demonstration, or poorly nourished with repeated
ulceration. Disfiguring scars may also be rated but only of
if disfiguring of the head, face, or neck. Other scars are
rated on the basis of limitation of function of the part
affected.
In this case, the most recent VA examination noted various
scars, including disfiguring scars of the buttocks. However,
there were no underlying bruits noted. In the addendum to
the VA examination, the examiner reported that the scars were
slightly disfiguring but nontender to touch. There was also
no observable loss of underlying muscle group substance.
Thus more than slight injury to Muscle Group XVII has not
been shown. Based on the above evidence, the Board can find
no basis on which to grant an increased rating based on
scarring. Although the veteran has reported some tenderness
at times, there is no objective evidence of tender or painful
scars. In order to warrant a 10 percent evaluation for a
superficial scar, it must be tender and painful on objective
demonstration, or poorly nourished with repeated ulceration.
Photographic evidence included in the claims file fail to
reveal poorly nourished scars or ulcerations. Finally, there
is no evidence that residual scarring has affected the
veteran's limitation of function of the buttocks or hip.
Therefore, there is no basis under DCs 7803, 7804, or 7805
for a higher rating.
In evaluating the muscle injury, the Board notes that the
most recent VA examination showed no evidence of loss of
underlying muscle group substance at the site of any
scarring. Thus, there is no basis for a separate compensable
evaluation under any of the appropriate muscle groups.
Further, the Board has considered limitation of motion of the
buttocks. However, the VA examiner reflected that Patrick's
test was negative, which indicated that no hip pathology
existed, and range of motion of the hips was normal.
Accordingly, the Board can find no basis on which to grant a
separate compensable evaluation for a musculoskeletal
disability. Finally, there is no evidence of current
peripheral nerve involvement or was there nerve involvement
around the buttocks at the time of the injury. Therefore,
there is no basis on which to assign a compensable evaluation
for peripheral nerve involvement.
G. Entitlement to an Increased (Compensable) Evaluation
for Shell Fragment Wound, Right Knee
The RO has rated the veteran's shell fragment wound
disability of the right knee under DC 7805 for residual
scarring. As discussed above, a compensable evaluation for
scarring is available only for superficial scars which are
tender and painful on objective demonstration, or poorly
nourished with repeated ulceration. The evidence is
uncontroverted that the veteran has scarring of the right
knee and popliteal space. Although the veteran reported some
discomfort with the scars at times, the examiner noted that
all scars, including the right knee scars, were nontender to
touch. Importantly, there was also no observable loss of
underlying muscle group substance. Based on the above
evidence, the Board can find no basis on which to grant an
increased rating based on residual scarring.
In evaluating the muscle injury, the Board notes that the
most recent VA examination showed no evidence of loss of
underlying muscle group substance at the site of any
scarring. Thus, there is no basis for a separate compensable
evaluation under any of the appropriate muscle groups.
Further, the Board has considered limitation of motion of the
right knee. However, the VA examination showed range of
motion of the right knee to be normal. Accordingly, the
Board can find no basis on which to grant a separate
compensable evaluation for a musculoskeletal disability.
Finally, although the veteran has reported some weakness in
his right extremity, it appears to be related to a back
disability and not to peripheral nerve involvement at the
site of the right knee. Therefore, there is no basis on
which to assign a compensable evaluation for peripheral nerve
involvement.
(CONTINUED ON NEXT PAGE)
II. Claims for Entitlement to Service Connection for a Back
Disability on a Direct and Secondary Basis
A. Whether New and Material Evidence Has Been Submitted
to Reopen a Claim for Entitlement to Service Connection for a
Back Disability on a Direct Basis
The United States Court of Veterans Appeals had held that the
well-groundedness requirement set forth in 38 U.S.C.A.
§ 5107(a) (West 1991 & Supp. 1998) does not apply with regard
to the reopening of disallowed claims and the revision of
prior final determinations. Jones v. Brown, 7 Vet. App. 134
(1994). Further, unappealed rating decisions are final with
the exception that a claim may be reopened by submission of
new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West
1991 & Supp. 1998); 38 C.F.R. § 3.156 (1997).
When a veteran seeks to reopen a claim based on new evidence,
the Board must first determine whether the additional
evidence is "new" and "material." Second, if the Board
determines that new and material evidence has been added to
the record, the claim is reopened and the Board must evaluate
the merits of the veteran's claim in light of all the
evidence, both new and old. Manio v. Derwinski, 1 Vet. App.
140 (1991). The first step of the Manio two-step process
includes determining (i) is the newly presented evidence
"new" (that is, not of record at the time of the last final
disallowance and not merely cumulative); (ii) is it probative
of the issue at hand (that is, each issue which was a
specified basis for the last final disallowance); and (iii)
if it is new and probative, then, in light of all the
evidence, is there a reasonable possibility that the outcome
of the claim on the merits would be changed. Evans v. Brown,
9 Vet. App. 273 (1996); see also Blackburn v. Brown, 8 Vet.
App. 97 (1995); Colvin v. Derwinski, 1 Vet. App. 171 (1991);
Smith v. Derwinski, 1 Vet. App. 178 (1991).
The RO originally denied the veteran's claim for a back
disability, claimed as arthritis and nerve damage, by
decision dated in May 1981 on the basis that a back disorder
was not caused or aggravated by military service, nor was it
due to his service-connected disabilities. However, in his
notice of decision, he was only informed that his back
disability was found to have not been incurred in or
aggravated by military service.
In June 1991, the veteran applied to reopen the claim for a
back disability apparently on a secondary basis. By rating
decision dated in April 1992, the RO denied the claim on the
basis that there was no indication that the veteran's back
disability was proximately due to his service-connected shell
fragment wounds. In the statement of the case, it appears
that the RO considered all the evidence, both old and new,
and denied the claim. However, the claim was characterized
as if on a direct basis and he was not provided with new and
material regulations. By way of clarification, the Board
will address the claim for a back disability on a direct
basis, as well as on a secondary basis, discussed in detail
below. In support of his claim on a direct basis, he has
submitted written statements and testimony, private medical
records, and VA treatment records. This appeal is before the
Board from the veteran's unsuccessful attempt to reopen his
claim for entitlement to service connection for a back
disability based on this additional evidence.
The first items for additional consideration are various VA
treatment records. Specifically, hospitalization records
dated in 1983 show that the veteran underwent a lumbar
laminectomy for lumbar stenosis with neurogenic claudication.
In August 1991, he underwent a VA orthopedic and neurologic
examination. The examiner did not address the issue of
direct service connection and the veteran was noted to have
had an laminectomy of the lumbosacral spine, etiology
undetermined. In a VA orthopedic examination report dated in
April 1993, the veteran again related a history of low back
pain for many years and indicated that he quit his job in
1980 because of it. In the most recent VA examination report
dated in July 1996, he reported that he underwent back
surgery in 1982. The examiner noted that the veteran's basic
problem was a back disorder but there was no indication that
it was directly related to service. Finally, outpatient
treatment records dated in 1996 describe ongoing low back
pain and restenosis of the lumbar spine. Although new, the
VA medical evidence is not probative as it does not indicate
a causal relationship between the veteran's chronic back
disability and active duty service some 40 years earlier.
The next items for additional consideration are private
treatment records. Specifically, the evidence shows that the
veteran received treatment for a variety of medical disorders
including a carotid artery blockage, fatigue, cerebrovascular
accident, cataract extraction, cellulitis, shortness of
breath, denuded lining of the tongue, shoulder tenderness,
bronchitis, groin rash, prostatectomy, in addition to leg and
knee pain. A letter from G. David Gowder, III, M.D. dated in
August 1992 indicates that the veteran was found to have
degenerative disc disease and underwent a lumbar laminectomy
in 1983. Dr. Gowder observed that the veteran continued to
have some back and right lower extremity radicular problems
that were worsening. He recommended further evaluation of
the veteran's back status. In August 1996, Dr. Gowder also
noted that the VA had diagnosed some lumbar spinal stenosis
but surgery was not recommended. Although new, this evidence
is not material to the issue of direct service connection as
it does not provide probative information concerning the
etiology of the veteran's chronic back disorder.
Finally, at a personal hearing in March 1993, the veteran
made no claim that his back disability was the direct result
of an incident or injury to his back in service. Similarly,
various written statements submitted by the veteran do not
appear to assert that his back disability is a direct result
of active duty service. While new, this evidence is not
material to the issue of entitlement to service connection
for a back disability on a direct basis as it makes no
reference to the issue under consideration.
Thus, the Board concludes, that in the absence of competent,
credible evidence of a medical nexus, and, as none of the
evidence discussed above is both new and material, the claim
for entitlement to service connection for a back disability
on a direct basis is not reopened. 38 U.S.C.A. § 5108 (West
1991 & Supp. 1998); 38 C.F.R. § 3.156 (1997).
B. Entitlement to Service Connection for a Back
Disability Secondary to Service-Connected Shell Fragment
Wound Disabilities
As noted above, the veteran filed a claim in June 1991 for a
back disability, claimed as secondary to his service-
connected shell fragment wound disabilities. Under the
appropriate regulations, service connection may be granted
for disability resulting from disease or injury incurred in
or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131
(West 1991 & Supp. 1998). If a chronic disease is shown in
service, subsequent manifestations of the same chronic
disease at any later date, however remote, may be service
connected, unless clearly attributable to intercurrent
causes. 38 C.F.R. § 3.303(b) (1997). However, continuity of
symptoms is required where the condition in service is not,
in fact, chronic or where diagnosis of chronicity may be
legitimately questioned. 38 C.F.R. § 3.303(b) (1997).
In addition, service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 U.S.C.A. § 1113(b) (West
1991 & Supp. 1998); 38 C.F.R. § 3.303(d) (1997). The Board
must determine whether the evidence supports the claim or is
in relative equipoise, with the veteran prevailing in either
case, or whether the preponderance of the evidence is against
the claim, in which case, service connection must be denied.
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Service connection is also warranted for a disability which
is aggravated by, proximately due to or the result of a
service-connected disease or injury. 38 C.F.R. § 3.310
(1997); Allen v. Brown, 7 Vet. App. 439 (1995). When
service connection is thus established for a secondary
condition, the secondary condition shall be considered a part
of the original condition. Id.
However, the threshold question which must be resolved with
regard to each claim is whether the veteran has presented
evidence that each claim is well grounded; that is, that each
claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609,
611 (1992). A plausible claim is "one which is meritorious
on its own or capable of substantiation." Black v. Brown,
10 Vet. App. 279 (1997). The duty to assist under
38 U.S.C.A. § 5107(a) is triggered only after a well-grounded
claim is submitted. See Anderson v. Brown, 9 Vet. App. 542,
546 (1996). Evidentiary assertions by the person who submits
a claim must be accepted as true for the purposes of
determining whether a claim is well-grounded, except where
the evidentiary assertion is inherently incredible or beyond
the competence of the person making the assertion. See King
v. Brown, 5 Vet. App. 19 (1993).
Where the determinative issue is factual rather than medical
in nature, competent lay testimony may constitute sufficient
evidence to well ground the claim. See Grottveit v. Brown, 5
Vet. App. 91, 93 (1993). For a service-connected claim to be
well-grounded, there must be a medical diagnosis of current
disability, lay or medical evidence of in-service incurrence
or aggravation of a disease or injury, and medical evidence
of a nexus between the in-service injury or disease and
current disability. See Epps v. Brown, 9 Vet. App. 341, 343-
44 (1996), aff'd, 126 F.3d 1464 (Fed. Cir. 1997); Caluza v.
Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed.
Cir. 1996).
A review of the veteran's service medical records reveals no
complaints, symptomatology, or findings of a chronic back
disability. In addition, there is no indication of any
inservice history of a back injury.
In August 1991, the veteran underwent a VA orthopedic
examination for development of his claims. He reported the
shrapnel injuries and indicated that he had had a laminectomy
on his lumbosacral spine eight years previously, which he
thought was for calcium deposits. Physical examination of
the low back revealed no pain on pressure, no spasm of the
lumbar paravertebral muscles, and no malalignment of the
lumbar spine. Range of motion was forward flexion to 85
degrees, extension to 10 degrees, lateral flexion to 25
degrees, and rotation to 25 degrees. Among other findings,
he walked with a normal gait, has positive straight leg
raises on the right, and did not walk with a walking aid.
The final diagnoses included laminectomy lumbosacral spine,
etiology undetermined. The examiner concluded that he could
not determine whether the reason for the laminectomy was
secondary to the veteran's service-connected disabilities
from the medical history provided.
By rating decision dated in April 1992, the RO denied
entitlement to service connection for a back disability on
the basis that there was no evidence that the veteran's back
disability was proximately due to his service-connected shell
fragment wound disabilities. He disagreed with that decision
and submitted a statement from his private treating
physician, G. David Gowder, III, M.D. Dr. Gowder indicated
that he had treated the veteran for several years for his
chronic disabilities due to shrapnel wounds. He noted that
the veteran was found to have degenerative disc disease and
underwent a lumbar laminectomy at L3-L4 and L4-L5 in 1983 at
a VA hospital. He related that the veteran continued to have
some back and right lower extremity radicular problems. Dr.
Gowder concluded that the veteran's problems were worsening
and that further evaluation of his back was probably
warranted. Importantly, Dr. Gowder did not attribute the
veteran's back disorder to his service-connected
disabilities.
In a personal hearing before the RO in March 1993, the
veteran testified that he had back surgery in 1984. He
maintained that the surgery was precipitated by his shrapnel
wounds. He reflected that he could not walk much distance
and could not stand for long periods of time. Upon further
questioning, he indicated that he had had back pain for years
and had muscle spasms about every night. He stressed that he
did not have muscle spasms during the day and that they came
and went. He stated that he could bend over but could not
touch his toes and that it hurt to do so. He observed that
he could not twist his back from side to side.
The veteran underwent another VA orthopedic examination in
April 1993. He related a many year history of low back pain
and in 1980 quit his job because of that problem. He
subsequently had back surgery without much improvement. He
complained of muscle spasms and back aches across the small
of his back and down his right leg. He related that if he
stood up for more than ten minutes, the whole leg went numb.
Medications included Indocin. After a physical examination,
the examiner diagnosed post operative status lumbar
laminectomy with fusion for degenerative joint disease and/or
degenerative disc disease with a well-healed scar and
residual motor and sensory changes. In a June 1993 addendum,
the examiner noted that he had reviewed the claims file and
concluded that the veteran's back complaints were not related
to his service incurred injuries to the lower extremities.
The examiner explained that the service records pointed to
paresthesia along the antero-medial aspect of the left thigh
and represented a sensory neuropathy along the saphenous
nerve, which was a branch of the femoral nerve and not the
sciatic nerve. Apparently, the veteran's back radiculopathy
was referred along the sciatic nerve of the right lower
extremity and was along the posterior, not anterior, path.
In July 1993 the hearing officer denied the veteran's claim
and a supplement statement of the case was issued. In
October 1995, the Board remanded the case because it did not
appear that the veteran had been properly notified that his
earlier claim for a back disability on a secondary basis had
been denied or that he had received the applicable laws and
regulations. Further, during the initial appeal period, the
law changed to reflect that service connection was warranted
when aggravation of a nonservice-connected disability was due
to or the result of a service-connected disability. Allen v.
Brown, 7 Vet. App. 439 (1995). Thus, the Board remanded the
case for readjudication of the secondary claim.
In July 1996, the veteran underwent a VA orthopedic
examination. At that time, he reported the shrapnel wounds
to his left hip and thigh, and right thigh and knee. He
related that he did well until about 1979 when he began to
have low back discomfort which was diagnosed as lumbar
stenosis, which the examiner noted had nothing to do with the
shrapnel wounds. He underwent back surgery in 1982. Current
complaints included weakness in the lower legs, difficulty
walking, and pain. After a physical examination, the
examiner concluded that the back condition was not related to
the shrapnel wounds incurred in WWII. He opined that there
may be some effects from the lumbar stenosis that had caused
a right L5-S1 radiculopathy but no indication of
osteoarthritis of the hips. The final diagnosis was post
operative status lumbar laminectomy for spinal stenosis with
a well healed scar. In a September 1996 addendum, the
examiner again stressed that the veteran's back disability
was not related either directly or indirectly to the shell
fragment wounds to the lower extremities.
In this case, the veteran has not provided any credible
medical statements that would etiologically link his low back
disorder with his service-connected shell fragment wound
disabilities or otherwise show a relationship. The veteran
has only offered his lay opinion concerning its development.
Mere contentions of the veteran, no matter how well-meaning,
without supporting medical evidence that would etiologically
relate his current disability with a disorder incurred while
in service, do not constitute a well-grounded claim. Caluza
v. Brown, 7 Vet. App. 498 (1995); Lathan v. Brown, 7 Vet.
App. 359 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 144
(1994); King v. Brown, 5 Vet. App. 19 (1993). Moreover, in
the recent VA examination report, the examiner specifically
opined that the low back disorder was not a result of the
service-connected shell fragment wound disabilities. Thus,
to the extent the veteran claims entitlement to service
connection for a low back disability as secondary to his
service-connected shell fragment wound disabilities, that
claim is not well-grounded as he has not submitted any
competent evidence to demonstrate that the claim is
plausible.
Where a claim is not well grounded, it is incomplete. The VA
has an obligation to inform the veteran of the information
needed to complete the claim. Robinette v. Brown, 8 Vet.
App. 69 (1995). In this case, such notice has been provided
in the statement of the case and supplemental statement of
the case, and there is no suggestion that there is any
available evidence which, if obtained, would render this
claim well grounded.
Finally, although the RO did not specifically state that it
denied the veteran's claim on the basis that it was not well
grounded, the Board concludes that this error was not
prejudicial to the claimant. See Edenfield v. Brown, 8 Vet.
App. 384 (1995) (deciding that the remedy for the Board's
deciding on the merits a claim that is not well grounded
should be affirmance, on the basis of nonprejudicial error).
While the RO denied service connection on the merits, the
Board concludes that denying the claim because the claim is
not well grounded is not prejudicial to the veteran, as his
arguments concerning the merits of the claim included, at
least by inference, the argument that sufficient evidence to
establish a well-grounded claim is of record. Therefore, the
Board finds that it is not necessary to remand the matter for
the issuance of a supplemental statement of the case
concerning whether or not the claim is well grounded. See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993); VAOGPREC 16-92
(O.G.C. Prec. 16-92) at 7-10.
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to an increased evaluation for residuals of a
shell fragment wound, right thigh with muscle herniation,
Group XIII with retained foreign body, currently evaluated at
30 percent disabling, is denied.
Entitlement to an increased evaluation for residuals of a
shell fragment wound, left hip and thigh with retained
foreign body and involvement of saphenous nerve, currently
evaluated at 10 percent disabling, is denied.
Entitlement to an increased (compensable) evaluation for
residuals of a shell fragment wound, both buttocks, is
denied.
Entitlement to an increased (compensable) evaluation for
residuals of a shell fragment wound, right knee, is denied.
New and material evidence having not been submitted, the
claim for entitlement to service connection for a back
disability on a direct basis is not reopened and the benefits
sought are denied.
Entitlement to service connection for a back disability
secondary to service-connected shell fragment wound
disabilities is denied on the basis that the claim is not
well grounded.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.